decided: June 12, 1969.
Appeal from order of Court of Common Pleas of Montgomery County, No. 68-3894, in re custody of Angela Ruth Schwab and Charles Jeffrey Schwab, minors.
C. George Milner, for appellant.
Raymond M. Seidel, with him Walton Coates, and High, Swartz, Roberts & Seidel, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.
Author: Per Curiam
[ 214 Pa. Super. Page 531]
Dissenting Opinion by Hoffman, J.:
In the instant case, the lower court awarded the custody of two children, Angela, age seven, and Charles, age four, to the father, a Pennsylvania resident. The testimony reflects that the mother was devoted, of good moral character and had provided a fine home for the children. The prima facie right of a mother to her young children is one of the strongest presumptions
[ 214 Pa. Super. Page 532]
*fn1 It would also appear that the lower court based its decision in great part on the fact that the mother lived outside of the Commonwealth, in New York City. There are cases which have indicated that our courts should favor granting custody to a parent who resides within this Commonwealth. To the extent that such doctrine ever truly represented the law in this Commonwealth, I would reject it. Moreover, in the circumstances of this case, there would appear to be no reason for this factor to have been considered or given the great weight accorded it by the lower court. Cf. Proctor v. Proctor, 213 Pa. Superior Ct. 171, 245 A.2d 684 (1968).